Nomos explainer: 1 July 2017 changes to Australia’s skilled migration programmes

SUBCLASS 457 VISA PROGRAMME – TEMPORARY RESIDENCE

• A new regulation was introduced in an attempt to provide lawful authority for the 457 visa caveat system and its retrospective application. While Nomos welcomes the government’s willingness to acknowledge our initial concerns in relation to the lawful basis of the caveat system introduced on 19 April 2017 that were reported in The Australian Financial Review on 7 June 2017, we are now concerned about the validity of this new regulation as it confers exceedingly broad powers and an unfettered discretion upon the Minister to exclude employers from accessing occupations under the 457 visa programme. Our concerns about the validity of this new regulation, and the lack of certainty in relation to a number of the newly specified caveats supported by this regulation, were reported in The Australian Financial Review on 7 July 2017.

• Changes to the occupations lists – some winners and losers
  • MLTSSL now includes 103 occupations, some of which are caveat-affected. Notably, some lobbying efforts have been successful as various occupations now appear on the MLTSSL (after having been removed or relegated to the STSOL on 19 April 2017), including Chief Executive Officer, Corporate General Manager, Faculty Head, University Lecturer and Horse Trainer.
  • STSOL now includes 253 occupations, some of which are caveat-affected. Notably, various occupations now appear on the STSOL (after having been removed or relegated to the MLTSSL on 19 April 2017), including Research and Development Manager, Pilot, Anaesthetist, Production Manager Mining and Retail Buyer. Notably, if an international trade obligation applies (e.g. World Trade Organisation General Agreement on Trade in Services or other Free Trade Agreement) to an occupation on the STSOL, the visa may now be granted for a period of up to 4 (rather than 2) years.
  • 9 occupations were removed from the lists: Equipment Hire Manager, Fleet Manager, Picture Framer, Property Manager, Psychotherapist, Real Estate Agent Principal, Real Estate Agent, Real Estate Agent Representative, University Tutor.

• The English-language testing exemption was removed for visa applicants (except intra-corporate transferees) applying on or after 1 July 2017 who earn more than AUD 96,400 per annum. Notably, the exemption still applies to any unfinalised visa applications lodged before 1 July 2017.

• For visa applications lodged on or after 1 July 2017, each applicant aged 17 years or older must provide police clearance certificates for each country (including Australia) in which they have lived for a cumulative period of 12 months or more, over the last 10 years, since turning 16 years of age.

• The sponsor training benchmark requirements were tightened in a new legislative instrument which defines payroll and narrowly specifies what constitutes acceptable training expenditure. The range of authorised training funds has been reduced and acceptable training has been limited in part by removing eligibility of training to principals and limiting internal training. The requirements apply to applications made on or after 1 July 2017 and will be removed in March 2018 when the Skilling Australians Fund will be introduced.

• Sponsorship accreditation criteria were broadened to allow more sponsors access to the benefits of faster processing under the sponsorship accreditation scheme. Previously, accreditation was mostly restricted to “high volume usage” sponsors who lodged at least ten 457 visas in the last 2 years. Since 1 July 2017, “low volume usage” sponsors will also be able to be accredited if their annual turnover exceeds AUD 4 million and at least 90% of their staff are Australian citizens or permanent residents.

• Mandatory skills assessment requirements were broadened to include passport holders from Bangladesh, Nepal and Pakistan seeking to be nominated in the occupations of Cook and Chef.

EMPLOYER NOMINATION SCHEME (ENS) and REGIONAL SPONSORED MIGRATION SCHEME (RSMS) PROGRAMME – PERMANENT RESIDENCE

• Removal of the English language requirement exemption for high income earners: Previously, applicants whose base salary exceeded AUD 180,001 per annum were exempt from meeting the English language requirement. This exemption has now been removed and affects visa applications lodged on or after 1 July 2017 as well as those unfinalised applications in the pipeline that were lodged before 1 July 2017. This change was not foreshadowed by the government and its retrospective effect has upset many pipeline visa applicants and their employers. Nomos is concerned about the lawfulness of the retrospective application of this change and the impossibility of some applicants being able to lawfully demonstrate that they possessed the requisite level of English if they lodged their visa application before 1 July 2017.*

• New “genuine need” and “direct control” requirement: For applications lodged on or after 1 July 2017, employers will be required to demonstrate their “genuine need” to employ the visa applicant, as a paid employee, to work in the position under their “direct control”. This change was not foreshadowed and will likely include an assessment of whether the position is aligned with the nature and scope of the business. The “direct control” requirement is expected to challenge larger businesses seeking to employ visa applicants across various related or associated entities.

• New visa application refund options: New refund provisions apply to visa applications made before, on and after 1 July 2017 to enable DIBP to refund visa application charges where an application is made incorrectly or a nomination is refused in certain circumstances.

• A new regulation was introduced in an attempt to provide lawful authority for a new occupations-list based caveat system under the Direct Entry stream of the ENS visa programme. Nomos is concerned about the validity of this new regulation as it similarly confers exceedingly broad powers and an unfettered discretion upon the Minister to exclude employers from accessing occupations under the Direct Entry stream of ENS visa programme. We are also concerned by the lack of certainty in relation to a number of the newly specified caveats.

• A new instrument was released which details the new occupations lists for Direct Entry ENS visa application purposes. The new lists are the MLTSSL (which includes 207 occupations, some of which are caveat-affected) and the STSOL (which includes 253 occupations, some of which are caveat-affected). Notably, only occupations listed on the MLTSSL can be accessed from March 2018.

• Age requirement changes: The primary visa applicant age threshold at time of visa application lodgment was reduced. Prior to 1 July 2017, applicants needed to be less than 50 years of age when they applied. Visa applicants lodging on or after 1 July 2017 must be less than 45 years of age at time of application. There was no change to the age exemptions available.

• English language requirement changes: No threshold criteria change – applicants must still meet the requirement an IELTS (or equivalent test) score of at least 6 in test each component.

• Removal of the Skills exemption for high income earners: Previously applicants who received a base salary of AUD 180,001 per annum were exempt from providing a skills assessment as part of the application process. This exemption has now been removed and affects visa applications lodged on or after 1 July 2017 as well as those unfinalised applications in the pipeline that were lodged before 1 July 2017. This change was not foreshadowed by the government and its retrospective effect has upset many pipeline visa applicants and their employers. Nomos is concerned about the lawfulness of the retrospective application of this change and the impossibility of some applicants being able to lawfully demonstrate that they now possess the requisite level of skill.*

• From 1 July 2017, all nominations must include information about the nominee’s identity.

• Age requirement changes: No change to the 50 year age threshold at time of visa application but this will be reduced to 45 years in March 2018.

• English language requirement changes: A requirement of an IELTS (or equivalent) test score of at least 6 in each test component for applications lodged on or after 1 July 2017.